14-1382 IN THE UNITED STATES COURT OF APPEALS … · FOR THE EIGHTH CIRCUIT TRINITY LUTHERAN CHURCH OF COLUMBIA, ... SUMMARY OF THE CASE Appellant Trinity Lutheran Church, Inc

14-1382

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,

Plaintiff-Appellant,

v.

SARA PARKER PAULEY, in her official capacity as

Director of the Missouri Department of Natural Resources

Solid Waste Management Program,

Defendant-Appellee.

Appeal from the United States District Court, Western District

of Missouri, The Honorable Nanette K. Laughrey

BRIEF OF APPELLEE

CHRIS KOSTER

Attorney General

JAMES R. LAYTON

Solicitor General

Mo. Bar No. 45631

KRISTIN STOKELY

Assistant Attorney General

Mo. Bar No. 65040

P.O. Box 899

Jefferson City, MO 65102

(573) 751-1800

(573) 751-0774 (facsimile)

[email protected]

[email protected]

ATTORNEYS FOR APPELLEE

Appellate Case: 14-1382 Page: 1 Date Filed: 06/18/2014 Entry ID: 4166477

i

SUMMARY OF THE CASE

Appellant Trinity Lutheran Church, Inc. (“Trinity”) applied to

receive a grant under the Playground Scrap Tire Surface Material

Grant Program (“Program”) managed by the Department of Natural

Resources’ Solid Waste Management Division (“Department”). Joint

Appendix (“JA”). at 105. The Department did not award Trinity the

grant because Article I, § 7 of the Missouri Constitution prohibits the

use of public funds in aid of a religious institution. Id.

Trinity filed a complaint against the Department. JA. at 1-19. The

district court dismissed the complaint for failure to state a claim. JA. at

104-138. The district court held that Trinity failed to allege any

violations of the Missouri Constitution, Article I, § 7, any violation of

the Free Exercise Clause, the Equal Protection Clause, the

Establishment Clause, or the Free Speech Clause of the United States

Constitution, and dismissed Trinity’s complaint with prejudice. Id. The

district court’s dismissal should be affirmed.

The Department requests 20 minutes for oral argument due to the

number of issues in the case.


ii

TABLE OF CONTENTS

SUMMARY OF THE CASE ....................................................................... i

TABLE OF AUTHORITIES ..................................................................... vi

STATEMENT OF THE ISSUES ............................................................... 1

STATEMENT OF THE CASE .................................................................. 3

SUMMARY OF THE ARGUMENT .......................................................... 9

ARGUMENT ........................................................................................... 12

I. THE DISTRICT COURT’S ORDER DISMISSING

TRINITY’S COMPLAINT WITH PREJUDICE SHOULD

BE UPHELD BECAUSE TRINITY FAILED TO STATE A

CLAIM UPON WHICH RELIEF CAN BE GRANTED

UNDER THE MISSOURI STATE CONSTITUTION. .................. 12

A. Standard of review ................................................................ 12

B. Trinity has not pled any facts to show that the

Department violated the Missouri Constitution,

Article I, § 7. .......................................................................... 13

1. The facts pled by Trinity show that any money

received by Trinity under the Program would


iii

have been “in aid of” the church in violation of

the Missouri Constitution, Article I, § 7. ..................... 14

2. Trinity has pled no facts that demonstrate that

barring it from participating in the Program is

discriminatory under Article I, § 7 of the

Missouri Constitution. ................................................. 24

II. THE DISTRICT COURT’S ORDER DISMISSING

TRINITY’S COMPLAINT WITH PREJUDICE SHOULD

BE UPHELD BECAUSE TRINITY FAILED TO STATE A

CLAIM UPON WHICH RELIEF CAN BE GRANTED

UNDER THE UNITED STATES CONSTITUTION. .................... 25

A. Trinity’s claim that its exclusion from the Program

violated the Free Exercise Clause fails as a matter of

law because Trinity has not alleged or shown that

the Department has prohibited or restricted the

exercise of a religious practice. ............................................. 26

B. Trinity’s claim that its exclusion from the Program

violated the Equal Protection Clause fails as a

matter of law because Trinity has not alleged any


iv

facts or theories that would prove the absence of a

“rational basis” for the Program limitation. ......................... 30

C. Trinity has failed to allege any theory that supports

its proposition that it is entitled to relief under the

Establishment Clause. .......................................................... 31

1. The Department’s refusal to allow Trinity to

participate in the Program is not hostile toward

religion. ......................................................................... 32

2. The Department’s practice of refusing to allow

Trinity to participate in the Program does not

excessively entangle the Department with

Religion. ........................................................................ 35

3. Trinity did not claim below that the

Department discriminated between religious

denominations in implementing the Program. ........... 37

III. THE DISTRICT COURT DID NOT ERR IN REFUSING

TO GRANT TRINITY LEAVE TO FILE AN AMENDED

COMPLAINT AFTER IT HAD ALREADY ISSUED ITS

ORDER IN THE CASE. ................................................................. 39


v

A. Standard of Review ............................................................... 39

B. Trinity did not seek leave to amend its complaint

until after the court had already dismissed the

action. .................................................................................... 40

C. Refusing Trinity leave to amend its complaint after

the court had already dismissed the action for failure

to state a claim was within the court’s discretion. ............... 41

CONCLUSION ........................................................................................ 43

CERTIFICATE OF COMPLIANCE AND OF SERVICE ....................... 44


vi

TABLE OF AUTHORITIES

CASES

Americans United v. Rogers,

538 S.W.2d 711 (Mo. 1976) ..................................................... passim

Bd. of Educ. of Westside Cmty. Sch. v. Mergens,

496 U.S. 226 (1990) ........................................................................ 34

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ........................................................................ 13

Berghorn v. Reorganized Sch. Dist. No. 8,

260 S.W.2d 573 (Mo. 1953) ............................................................. 13

Boone Cnty. Court v. State,

631 S.W.2d 321 (Mo. 1982) ............................................................. 24

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) ............................................................ 27, 28, 29

Colorado Christian University v. Weaver,

534 F.3d 1245 (10th. Cir. 2008) ........................................... 35, 36, 38

Cornelia I. Corwell GST Trust v. Possis Medical, Inc.,

519 F.3d 778 (8th Cir. 2008)...................................................... 39, 41


vii

Frye v. Levy,

2013 WL 1914393, at *4 (Mo. App. S.D. May 9, 2013) .............. 1, 24

Harfst v. Hoegen,

163 S.W.2d 609 (Mo. 1941) ................................................. 19, 20, 21

Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995) ............................................................. 28

Heller v. Doe by Doe,

509 U.S. 312 (1993) ........................................................................ 31

Johnson v. Robison,

415 U.S. 361 (1974) ........................................................................ 30

Kintzele v. City of St. Louis,

347 S.W.2d 695 (Mo. 1961) ..................................................... passim

Koehler v. Brody,

483 F,3d 590 (8th Cir. 2007)............................................................ 13

Locke v. Davey,

540 U.S. 712 (2004) ................................................................ passim

Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) ........................................................................ 26


viii

McVey v. Hawkins,

258 S.W.2d 927 (Mo. 1953) ....................................................... 20, 21

Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th Cir. 2004) ........................................................ 28

Orr v. Wal-Mart Stores, Inc.,

297 F.3d 720 (8th Cir. 2002)............................................................ 37

Parnes v. Gateway 2000, Inc.,

122 F.3d 539 (8th Cir. 1997)............................................ 2, 39, 40, 41

Paster v. Tussey,

512 S.W.2d 97 (Mo. 1974)......................................................... 20, 21

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819 (1995) .................................................................. 33, 34

Sherbert v. Verner,

374 U.S. 398 (1963) .............................................................. 1, 26, 27

Smithrud v. City of St. Paul,

746 F3d. 391 (8th Cir. 2014)............................................................ 12

St. Louis Univ. v. Masonic Temple Assoc. of St. Louis,

220 S.W.3d 721 (Mo. 2007) ................................................... 1, 22, 23


ix

Strout v. Albanese,

178 F.3d 57 (1st Cir. 1999) .................................................... 1, 32, 33

Students for Sensible Drug Policy Found. v. Spellings,

523 F.3d 896 (8th Cir. 2008)............................................................ 13

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,

309 F.3d 144 (3rd Cir. 2002) ........................................................... 28

U.S. ex rel. Roop v. Hypoguard USA, Inc.,

559 F.3d 818 (8th Cir. 2009).................................................. 2, 11, 40

United States v. Friday,

525 F.3d 938 (10th Cir. 2008) ...................................................... 1, 27

United States v. Means,

858 F.3d 404 (8th Cir. 1988)............................................................ 26

Vacco v. Quill,

521 US. 793 (1997) ......................................................................... 30

Zutz v. Nelson,

601 F.3d 842 (8th Cir. 2010)............................................................ 40


x

STATUTES

20 U.S.C. §§ 4071-4074 ........................................................................... 34

Amend. I, U.S. Const. ........................................................................ 26, 31

Art. I, § 7, Mo. Const. ...................................................................... passim

OTHER AUTHORITIES

Fed. R. Civ. Proc. 12(b)(6) ...................................................................... i, 4

Fed. R. Civ. Proc. 15(a) ............................................................................ 40


1

STATEMENT OF THE ISSUES

I. Whether Trinity failed to state a claim upon which

relief can be granted under the Missouri Constitution.

Americans United v. Rogers, 538 S.W.2d 711 (Mo. 1976).

Frye v. Levy, 2013 WL 1914393, at *4 (Mo. App. S.D. May 9,

2013).

Kintzele v. City of St. Louis, 347 S.W.2d 695 (Mo. 1961).

St. Louis Univ. v. Masonic Temple Assoc. of St. Louis,

220 S.W.3d 721 (Mo. 2007).

II. Whether Trinity failed to state a claim upon which

relief can be granted under the United States

Constitution.

Locke v. Davey, 540 U.S. 712 (2004).

Sherbert v. Verner, 374 U.S. 398, 412 (1963).

Strout v. Albanese, 178 F.3d 57, 64 (1st Cir. 1999).

United States v. Friday, 525 F.3d 938, 957 (10th Cir. 2008).


2

III. Whether the district court erred in refusing to grant

Trinity leave to file an amended complaint after it

had already issued its order in the case.

Parnes v. Gateway 2000, Inc.,

122 F.3d 539, 550-51 (8th Cir. 1997).

U.S. ex rel. Roop v. Hypoguard USA, Inc.,

559 F.3d 818, 823 (8th Cir. 2009).


3

STATEMENT OF THE CASE

Plaintiff, Trinity Lutheran Church Inc., operates a “Learning

Center” in Columbia, Missouri with the mission of “providing quality

pre-school education and day care for families in the Boone County,

Missouri and surrounding areas.” JA. at 3. “The Learning Center is a

ministry of the Church and incorporates daily religion and

developmentally appropriate activities into a school and optional

daycare program.” Id. at 4. “Through the Learning Center, the Church

teaches a Christian world view to children of members of the Church, as

well as children of non-member residents of Boone County and the

surrounding area.” Id. “The Church has a sincere religious belief to be

associated with the Learning Center and to use it to teach the Gospel to

children of its members, as well to bring the Gospel message to non-

members.” Id. The Learning Center provides a playground for its

students, which is currently surfaced with pea gravel and grass. Id.

The Missouri Department of Natural Resources Solid Waste

Management Program (“Department”) runs the Playground Scrap Tire

Surface Material Grant Program (“Program”), which competitively

awards grants to qualifying organizations to purchase recycled tires to


4

resurface playgrounds. JA. at 105. The Department grades and ranks

applications and gives grants to the organizations “that best serve the

program’s purposes.” Id. The Program is open to both public and private

nonprofit entities. Id. However, the Department, in maintaining

consistency with the Missouri Constitution, “has a policy that prohibits

organizations from participating if the applicant is owned or controlled

by a church, sect, or denomination of religions.” JA. at 105.

The Learning Center applied to the 2012 Program to “improve the

safety of the surface area of the playground.” JA. at 5. Trinity’s

application ranked fifth out of forty-four applications, but was denied

because of the Department’s policy to not give grants to religious

organizations. Id.

Trinity then filed its Verified Complaint for Declaratory and

Injunctive Relief against the Director alleging violations of Article I, § 7

of the Missouri Constitution, and the Equal Protection Clause,

Establishment Clause, Free Exercise Clause, and the Free Speech

Clause of the United States Constitution. Id. at 1-19. The Department

then filed its Motion to Dismiss, pursuant to Rule 12(b)(6), arguing that

Trinity failed to state a claim for which relief can be granted “because


5

Missouri’s constitutional prohibition against using public funds in aid of

any church, sect or denomination of religion does not violate the federal

Equal Protection Clause, the Free Exercise Clause, the Establishment

Clause, the Free Speech Clause, or the Missouri Constitution, Art I,

§ 7.” Id. at 20.

The district court granted the Department’s motion and dismissed

the case with prejudice. Id. at 104-38.

The district court held that Trinity could not prevail on its claim

that the Department violated the Missouri Constitution Article I, § 7

because Trinity failed to identify any evidence that might support its

claim. Id. at 116. Specifically, the district court held that the

Department’s refusal to give a grant to Trinity cannot be discriminatory

under the Missouri Constitution because the Missouri Constitution

“clearly prohibits public money from, directly or indirectly, going to aid

a church, sect, or denomination of religion” and Trinity’s own pleadings

show that the money would aid the Church and its ministry’s Learning

Center. Id. at 115.

The district court then discussed each of the claims presented

under the United States Constitution. The district court held that


6

Trinity did not plead any facts from which the court could conclude that

the decision to exclude religious institutions from the Program violated

the Free Exercise Clause. Id. at 132. Specifically, the district court

determined that the Free Exercise Clause “provides ‘protection from

certain forms of governmental compulsion’ ‘but generally does not

provide a basis for [d]emands for affirmative governmental assistance.’”

Id. at 116-17. As a result, the district court determined that the

exclusion of a religious preschool from this aid program is not

constitutionally suspect under the Free Exercise Clause “in light of the

longstanding and substantial concerns about direct payment of public

funds to sectarian schools.” Id. at 125.

The district court next determined that because Trinity failed to

allege a violation of the Free Exercise Clause, Trinity’s Equal Protection

claim must also be dismissed. Id. at 132. The district court, relying on

Locke v. Davey, 540 U.S. 712 (2004), determined that because there is

no Free Exercise Clause violation, the court must apply rational basis

scrutiny to the equal protection claim. JA. at 133. The district court

stated that “it is clear that the decision to exclude religious

organizations from participation in the [Program] withstands rational


7

basis review” because “Trinity’s exclusion from the aid program in this

case was based on the Missouri Constitution’s heightened separation of

church and state.” Id.

Trinity also alleged that the Department’s decision not to award it

a grant evidenced hostility toward religion, in violation of the neutrality

toward religion mandated by the Establishment Clause. JA. at 11-12.

The district court held that Trinity failed to state a claim that the

Department violated the Establishment Clause because Trinity cited no

cases that could “be interpreted as imposing an affirmative obligation to

provide direct subsidies to religious institutions.” Id. at 136. The district

court went on to say that “Trinity has not cited, and the Court’s

independent research has not revealed, a case construing the

Establishment Clause in the manner urged by Trinity.” Id.

Finally, the district court denied Trinity’s claim that the denial of

its grant application violated its right to Free Speech. Id. at 137. Trinity

does not raise this claim on appeal.

Trinity then filed a “Motion to Reconsider [sic] Requesting Leave

to Amend Complaint” alleging that the district court exceeded the scope

of Rule 12(b)(6) by reaching the legal merits of the case, JA. at 139-144,


8

and requesting leave to amend its Complaint after it received discovery

that it claims shows that the Department previously awarded grants to

“at least fifteen religious organizations,” id. at 140. The district court

denied the Motion to Reconsider and refused to grant Trinity leave to

amend its complaint. Id. at 226-232.

In denying Trinity’s motion, the district court concluded, “Trinity

could not succeed on the merits, regardless of what evidence might be

adduced through discovery, because its legal theories either did not

exist or were contrary to established law.” Id. at 230. It further denied

Trinity’s motion for leave to amend its complaint because Trinity failed

“to provide any explanation for not amending its Complaint prior to the

dismissal of [the] action” and because the amendment would be “futile”

because Trinity “failed to identify any valid legal theory under which

Missouri would need to show the existence of a compelling interest in

order to justify the decision not to award a grant to Trinity.” Id. at 232.


9

SUMMARY OF THE ARGUMENT

The Department of Natural Resources denied Trinity’s application

to be awarded a grant of public money under the Playground Scrap Tire

Surface Material Grant Program to resurface its playground because

the Missouri Constitution, Article I, § 7 provides “[t]hat no money shall

ever be taken from the public treasury, directly or indirectly, in aid of

any church, sect or denomination of religion, …; and that no preference

shall be given to nor any discrimination made against any church, sect

or creed of religion, or any form of religious faith or worship.”

The Department’s decision to deny Trinity grant funds under the

Program did not violate Article I, § 7 of the Missouri Constitution

because any funds granted to Trinity would have been unconstitutional

“aid” to a religion. Trinity pled that it was controlled by a church and

used its Learning Center to deliver a religious message, thus any funds

received would have been in “aid” of a religion. Trinity’s claim that Art.

I § 7 is not implicated because there would be an exchange of mutual

considerations between the Department and Trinity is not supported by

the constitutional language, nor by case law construing it. Because


10

Trinity failed to allege any facts or theories that could plausibly show a

violation of Article I, § 7 the dismissal should be affirmed.

Trinity’s claims under the United States Constitution fail for

similar reasons. Trinity’s claim that its exclusion from the Program

violated the Free Exercise Clause fails as a matter of law because

Trinity has not alleged or shown that the Department has prohibited or

restricted the exercise of a religious practice. Neither Trinity, nor the

district court, could find a single case that supports Trinity’s proposition

that the State is constitutionally required to include religious

institutions when it offers programs granting public money to both

public and private non-sectarian institutions.

As to Trinity’s Equal Protection claim, Trinity has not alleged any

facts or theories that could survive rational basis review. The

Department’s policy is rationally related to the State’s heightened

interest in the separation of church and state memorialized in Article I,

§ 7 of the Missouri Constitution.

All three of Trinity’s Establishment Clause claims fail because the

Establishment Clause does not give religious groups the right to secure

state subsidies that are available to non-religious groups. Trinity


11

cannot claim that the Department violated the Establishment Clause

because the Establishment Clause does not require that religious

organizations receive the same state subsidies as non-religious groups.

Further, Trinity’s claim that the Department’s policy excessively

entangles it with religion, in violation of the Establishment Clause, fails

because the Department does not make determinations between

“sectarian” and “pervasively sectarian,” as occurred in the case cited by

Trinity, but instead eliminates all sectarian institutions from the

Program. Lastly, Trinity claims that the Department discriminated

among religions, but this Court should not consider this claim, as

Trinity never pled it. Even if this Court considers the claim, Trinity has

pled no facts to prevail on it.

As to Trinity’s request for leave to amend its complaint, this Court

has previously held that after a final judgment has been entered, leave

to amend should be less freely available. U.S. ex rel. Roop v. Hypoguard

USA, Inc., 559 F.3d 818, 823 (8th Cir. 2009). Trinity had the information

it wished to add to the Complaint before the final order was issued, but

waited until after the final order was issued to request leave to amend.

The district court did not abuse its discretion in refusing to grant


12

Trinity leave to belatedly amend. Further the proposed amendment

would be futile, as the amended complaint would have still failed to

state a claim.

ARGUMENT

I. THE DISTRICT COURT’S ORDER DISMISSING TRINITY’S

COMPLAINT WITH PREJUDICE SHOULD BE UPHELD

BECAUSE TRINITY FAILED TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED UNDER THE

MISSOURI STATE CONSTITUTION.

Trinity makes two arguments as to why it believes the

Department’s denial of its grant application violates the Missouri

Constitution. Each is detailed below.

A. Standard of review

“This court reviews de novo the grant of a motion to dismiss,

taking all facts alleged in the complaint as true, and making reasonable

inferences in favor of the nonmoving party.” Smithrud v. City of St.

Paul, 746 F3d. 391, 397 (8th Cir. 2014). “To withstand a Rule 12(b)(6)

motion, a complaint must contain sufficient factual allegations to ‘state

a claim to relief that is plausible on its face.’” Id. (citing Bell Atl. Corp.


13

v. Twombly, 550 U.S. 544, 547 (2007)). “A motion to dismiss should be

granted if ‘it appears beyond doubt that the plaintiff can prove no set of

facts which would entitle him to relief.’” Students for Sensible Drug

Policy Found. v. Spellings, 523 F.3d 896, 899 (8th Cir. 2008) (citing

Koehler v. Brody, 483 F,3d 590, 596 (8th Cir. 2007)).

B. Trinity has not pled any facts to show that the

Department violated the Missouri Constitution,

Article I, § 7.

Missouri has long-standing tradition of recognizing the separation

between church and state. In Berghorn v. Reorganized Sch. Dist. No. 8,

260 S.W.2d 573, 582-83 (Mo. 1953) the Missouri Supreme Court

determined that Missouri has an “unqualified policy…that no funds or

properties, either directly or indirectly, be used to support or sustain

any school affected by religious influences or teachings or by any

sectarian or religious beliefs or conducted in such a manner as to

influence or predispose a school child towards the acceptance of any

particular religious beliefs.” (Internal quotations omitted). That policy

is embodied in Article I, § 7 of the Missouri Constitution, which states:

That no money shall ever be taken from the public treasury,

directly or indirectly, in aid of any church, sect or


14

denomination of religion, or in aid of any priest, preacher,

minister or teacher thereof, as such; and that no preference

shall be given to nor any discrimination made against any

church, sect or creed of religion, or any form of religious faith

or worship.

Trinity alleges two different violations of this provision based

upon its two clauses. First, Trinity alleges that the Program involves

mutual considerations and thus any money the Department gives to

Trinity is not “in aid of” the institution. Appellant Brief (“AB”) at 20.

Second, Trinity alleges that barring it from participating in the

Program is discriminatory toward religion. Id. at 24. But, as Trinity’s

own allegations show, any money it received would have been “in aid of”

the church. And Trinity did not allege facts that would show

discrimination prohibited by Art. I, § 7.

1. The facts pled by Trinity show that any money

received by Trinity under the Program would

have been “in aid of” the church in violation of

the Missouri Constitution, Article I, § 7.

Trinity implicitly concedes that it would benefit from or, to use the

constitutional language, be “aided” by a Program grant. See generally

JA, at 4-5. But Trinity claims that the Department cannot base its


15

decision on that fact because, Trinity claims, “the ‘no aid’ provision of

Article I, § 7 is not implicated if there is an ‘exchange of considerations’

between the state and the religious institution.” AB. at 22. Put

differently, Trinity argues that “[b]ecause participating in the

[Program] involves the exchange of considerations, payments under the

[P]rogram are not ‘in aid of’ a religious institution.” Id. at 23. In its

brief, Trinity cites two cases that it claims supports this theory;

however, Trinity mischaracterizes the holding and facts in both of these

cases.

Trinity first cites to Kintzele v. City of St. Louis, 347 S.W.2d 695

(Mo. 1961). AB, at 20. Trinity claims that Kintzele stands for the

proposition that “when state monies are given to a religious institution

in exchange of mutual considerations, they are not given ‘in aid of’ a

church.” Id. However, Trinity oversimplifies and mischaracterizes the

holding of Kintzele. Kintzele involved the sale of publicly condemned

land to a private sectarian school. Kintzele, at 697. The plaintiffs

claimed that Saint Louis University “was illegally designated to get the

land involved from the inception of the project and that no one else was

given an opportunity to acquire it,” which they claimed “was use of


16

public power and public funds in aid of a private sectarian school” in

violation of Art. I, § 7 of the Missouri Constitution. Id. at 699. Plaintiffs

essentially claimed that the University’s acquisition was

unconstitutional aid to the University because there was no public

bidding procedure, and the University acquired it for $535,800 when

the City spent $1,624,617 to acquire it. Id.

The court held that the “plaintiffs’ contention of illegal designation

and subsidy from public funds cannot be sustained” for two reasons. Id.

at 701. First, the sale was appropriate because the City was authorized

to sell the property “by negotiation at fair value for uses in accordance

with the redevelopment plan giving consideration to the uses and

purposes required, the restrictions upon and the covenants, conditions

and obligations assumed by the redeveloper.” Id. at 700. Second, the

City was given discretion to dispose of the property “under reasonable

competitive bidding procedures as it may prescribe.” Id. The City tried

competitive bidding of the land at issue and was only given one bid,

which it rejected, and then sold the land to the University for twice the

amount of the bid. Id. at 700-01. The fact that the University was

sectarian was irrelevant to the court’s ruling. All that mattered was


17

that the University acquired the property appropriately under the law.

Id. at 701.

The holding had nothing to do with mutual considerations

between the University and the City. It is true that in acquiring the

land the University promised to use it for certain purposes, but the

mutual promise was not the reason that the sale was not

unconstitutional aid. The sale was not unconstitutional aid because

“the sale was made by [the City] pursuant to due observance of all

applicable law […] and involved no preference or favoritism.” Id. at 699.

Kintzele doesn’t apply to the instant case at all. Trinity involves

the receipt of a benefit from the State government, not the purchase of

property from the state that was available to the purchaser that offered

the most money. Trinity’s reliance upon it to show that “mutual

considerations” cause the grant funds to not be “in aid of” a church is

misplaced and mischaracterizes the holding of the case.

Trinity also relies on Americans United v. Rogers, 538 S.W.2d 711

(Mo. 1976), again claiming, the case stands for the proposition that the

“no aid” provision of Art. I, § 7 is not violated if there is an exchange of

considerations. AB. at 22. Americans United involved a state statue


18

directing tuition grants to college students attending approved public or

private colleges so long as the educational training received was non-

religious in nature. Americans United, at 713-14. The program also

required that the institution have an independent board and academic

freedom. Id. at 721. The program issued checks to individual students

who then endorsed the funds over to their institution. Id. at 715.

It is true that in Americans United the party defending the

program argued that the tuition grants “were not gifts or donations by

the students to the institutions, but were the quid pro quo in return for

which the institutions were contractually required to make available

the opportunities for the students to obtain a college education.” Id. at

721. Trinity cites this passage when it claims that the Missouri

Supreme Court has held that quid pro quo exchanges of public funding

in return for obligations to utilize the funding cannot be considered

“aid” under Art. I, § 7. AB. at 22. The court does state that “it is at

least debatable whether or not encouraging the creation of such

additional obligations is constitutionally proscribed for the reason it is

in ‘aid’ of an institution,” but the court does not hold that mutual

obligations render the funding not “aid” to a religious institution.


19

Americans United, at 721. The court does hold that the program did not

violate Art. I § 7 because the students received the tuition directly from

the state and could only attend schools with independent boards not

under the control of a religious creed or church. Id.

Mutual considerations did not decide Kintzele or Americans

United. Neither case turned on the fact that receiving a benefit from

the state required some reciprocal actions.

The instant case is much more similar to the numerous cases in

which Missouri courts have found that granting state funds to private

sectarian schools is a violation of the Missouri Constitution.

In Harfst v. Hoegen, 163 S.W.2d 609 (Mo. 1941), the Missouri

Supreme Court struck down the use of public funds in running a private

school that the state took control of. The court held that the state’s

action violated the “explicit interdiction of the use of public money” in

Art. I, § 7 for religious instruction. Harfst, at 613-14. In Harfst, the

public school took control of the parochial school, but continued to rent

the building from the church, employed teachers from the church, and

incorporated religious curriculum into daily instruction. Id. at 614.


20

In McVey v. Hawkins, 258 S.W.2d 927 (Mo. 1953), the Missouri

Supreme Court found the use of public funds to transport students to

parochial schools to be unconstitutional.

In Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974) the Missouri

Supreme Court found a statute that required the use of public funds to

purchase textbooks for students and teachers in private non-profit

elementary and secondary schools, including parochial schools, to be

unconstitutional.

In its brief, Trinity implies that cases like Harfst, Mcvey, and

Paster are not applicable to the instant case because the instant case

involves an “exchange of considerations.” AB, at 23. But there is no

more “exchange” in the instant case than in those cases. In each, the

State conferred a benefit on the parochial schools – funding (Harfst),

transportation of students (Mcvey), and teaching materials (Paster). In

each the State received a minimal benefit – a lower cost for public

education, by reducing school districts’ costs either by obtaining

resources (Harfst), or encouraging pupils to attend parochial schools

(Mcvey and Paster). This “exchange” did not make the state’s actions in

these cases constitutional. The state’s actions were unconstitutional


21

because they resulted in grants of public money to sectarian

institutions.

The instant case is similar. If the State were to award Trinity

funds under the Program, Trinity would receive a benefit – an upgraded

playground facility at a much lower cost, and the State would receive a

minimal benefit – keeping scrap tires out of landfills. However, this

does not negate the fact, like it didn’t negate the fact in Harfst, Mcvey,

and Paster, that it is unconstitutional under the Missouri Constitution

to give public funds to sectarian institutions. The fact that the state

arguably obtains some benefit from awarding Trinity funds under the

Program is irrelevant.

The real difference between the cases Trinity relies on, Kintzele

and Americans United, and all the cases finding a violation of Art I, § 7

is not some analysis or form of “exchange of considerations,” but is the

degree of control a church exercises over the school. JA. at 114. “When

that degree of control was so great that the school was, in essence,

serving as a proxy or branch of the church, the Missouri Supreme Court

has consistently held that public aid, direct or indirect, would be

impermissible.” Id.


22

When the degree of control is not so great that the school is

serving as a proxy or branch of the church, the public funding is not

impermissible aid. In St. Louis Univ. v. Masonic Temple Assoc. of St.

Louis, 220 S.W.3d 721 (Mo. 2007), the City of St. Louis granted the

University public aid through a tax increment financing ordinance to

finance construction of a new arena. Id, at 724. The Missouri Supreme

Court determined that the ordinance was not “in aid of” a religious

institution and did not violate Art. I, § 7 because the University was not

controlled by a religious creed, was managed by an independent board,

its “mission [was] education, not indoctrination, and its focus [was] on

development of students, not on the propagation of the Jesuits’ faith.”

Id, at 728. In short, the court determined that despite the University’s

affiliation with the Jesuits, it was, in practice, an independent

institution, thus the financing was not unconstitutional aid to a church

under Art. I § 7 of the Missouri Constitution.

“The allegations in Trinity’s complaint show that public funding

through the [Program] would be impermissible under Section 7”

because the church exercises direct control over the school. Id. The

Learning Center merged with the church in 1985 and today remains


23

part of, and run by, the church. Id. See JA. at 3. Trinity affirmatively

stated that the Learning Center is a “ministry of the Church and

incorporates daily religion…into a school and optional daycare

program.” JA. at 4. Trinity pled that “[t]he Church has a sincere

religious belief to be associated with the Learning Center and to use it

to teach the Gospel to children of its members, as well as to bring the

Gospel message to non-members.” Id. The district court determined that

“unlike the colleges and universities in St. Louis University or

Americans United, the Church controls the learning center. It utilizes

religious curriculum in daily activities…by ‘teaching a Christian world

view.’” JA. at 115. It further held that “By all indications, Trinity has

pled that its Learning Center is a part of the Church and is used to

inculcate its religious beliefs to children in the preschool and daycare.”

Id. And that “Missouri courts have consistently held that public aid to

such an organization is prohibited under the State constitution.” Id.

To use the district court’s words, “Trinity’s claim based on the

Missouri Constitution must fail” because “Trinity’s own pleadings

demonstrate that funds from [the Program] would aid the Church and

its ministry Learning Center within the meaning of Missouri Law.” Id.


24

2. Trinity has pled no facts that demonstrate that

barring it from participating in the Program is

discriminatory under Article I, § 7 of the

Missouri Constitution.

Section 7 has two clauses, the first, addressed above, prohibits

public aid to any church. The second states that “no preference shall be

given to nor any discrimination made against any church, sect or creed

of religion, or any form of religious faith or worship.” Mo. Const. Art. I,

§ 7. Trinity claims that by prohibiting it from participating by refusing

to give it aid, the Department discriminated against Trinity. AB. at 24.

The district court disposed of this claim fairly simply using the

basic rules of statutory construction. JA. at 107. “It is a basic rule of

statutory construction that each section of a statute must be interpreted

in harmony with all sections of the statute.” Id. (citing Frye v. Levy,

2013 WL 1914393, at *4 (Mo. App. S.D. May 9, 2013)). “The same

principle applies to constitutional construction.” Id. (citing Boone Cnty.

Court v. State, 631 S.W.2d 321, 324 (Mo. 1982)).

The district court determined that “[c]onstruing both clauses in

harmony, it is not possible to read Section 7 to prohibit public aid to a


25

church while concurrently considering denial of that aid to be

discriminatory.” JA. at 107. Thus, because the Department is prohibited

from giving aid to Trinity by the first clause of Section 7, it is impossible

for the Department to be simultaneously discriminating against Trinity

under the second clause of Section 7. As a result, Trinity has failed to

state a claim upon which relief can be granted and the dismissal was

appropriate.

II. THE DISTRICT COURT’S ORDER DISMISSING TRINITY’S

COMPLAINT WITH PREJUDICE SHOULD BE UPHELD

BECAUSE TRINITY FAILED TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED UNDER THE UNITED

STATES CONSTITUTION.1

Trinity makes three arguments as to why it believes the

Department’s denial of its grant application violates the United States

Constitution. Each is detailed below.

1 The same Standard of Review, de novo, applies to this section as

applies in section I above.


26

A. Trinity’s claim that its exclusion from the Program

violated the Free Exercise Clause fails as a matter of

law because Trinity has not alleged or shown that the

Department has prohibited or restricted the exercise

of a religious practice.

The Free Exercise Clause states that Congress shall make no law

prohibiting the free exercise of religion. U.S. Const. Amend. I. The

Supreme Court has explained that “[t]he crucial word in the

constitutional text is ‘prohibit.’ For the Free Exercise Clause is written

in terms of what the government cannot do to the individual, not in

terms of what the individual can exact from the government.” Lyng v.

Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988) (quoting

Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring)).

This Court went on to explain that this clause provides “protection from

certain forms of governmental compulsion.” United States v. Means, 858

F.3d 404, 406 (8th Cir. 1988).

The Supreme Court also stated that “[t]he fact that government

cannot exact from me a surrender of one iota of my religious scruples

does not, of course, mean that I can demand of government a sum of


27

money, the better to exercise them.” Sherbert, 374 U.S. at 412. This

means that the Free Exercise Clause “generally does not provide a basis

for ‘[d]emands for affirmative governmental assistance.’” United States

v. Friday, 525 F.3d 938, 957 (10th Cir. 2008).

On appeal, Trinity makes the same claim that it did in the district

court, that the Department violated the Free Exercise Clause not

because it prohibited or compelled action by Trinity, but because it

declined Trinity’s “demand for affirmative governmental assistance.”

See AB, at 41. However, the Free Exercise Clause does not provide the

basis for such a claim.

In support of this claim, Trinity cites several cases, beginning with

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

531-32 (1993), which hold that, under the Free Exercise Clause, a court

must strictly scrutinize any law that burdens religious practice and is

not neutral and generally applicable. In the cases cited by Trinity,

however, the ordinance or regulation at issue violated the Free Exercise

Clause because it directly prohibited or restricted the exercise of a

religious practice. See, e.g., Lukumi, 508 U.S. at 542, 547 (1993)

(invalidating a series of ordinances that prohibited the ritual slaughter


28

of animals, which “had as their object the suppression of religion.”);

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 167-68 (3rd

Cir. 2002) (finding that the discriminatory enforcement of an ordinance,

which was selectively applied to prohibit the Orthodox Jewish practice

of hanging lechis while permitting other, comparable secular and non-

secular hangings, “violate[d] the neutrality principle of Lukumi”);

Hartmann v. Stone, 68 F.3d 973, 978 (6th Cir. 1995) (holding that a

series of Army regulations were not neutral where the regulations

“uniformly ban[ned] all religious practice”); Midrash Sephardi, Inc. v.

Town of Surfside, 366 F.3d 1214, 1232-34 (11th Cir. 2004) (finding that a

zoning ordinance that excluded religious groups from a certain district

but not similarly situate secular groups “improperly targeted religious

assemblies.”)

Trinity’s case is more similar to Locke v. Davey, 540 U.S. 712, 715

(2004), in which the Supreme Court upheld the state of Washington’s

decision to exclude students pursuing a devotional theology degree from

its Promise Scholarship Program. The Supreme Court determined that

this restriction did not violate the Free Exercise Clause because there

was no hostility toward religion, in that it did not impose criminal or


29

civil sanctions, it did not deny ministers the right to participate in

politics or the community, and it did not require students to choose

between their religious beliefs and receiving a government benefit. Id.

at 720-21. The Supreme Court determined that “[t]he State ha[d]

merely chosen not to fund a distinct category of instruction.” Id. Thus,

because there was not the hostility toward religion that was present in

Lukumi, the Court could not conclude that the rule was constitutionally

suspect, and that “without a presumption of unconstitutionality” the

“claim must fail.” Id. at 724-25.

Trinity’s claim must likewise fail. Trinity has not alleged that the

Department has prohibited or restricted the exercise of a religious

practice. Trinity has not alleged that the Department is discriminating

between religions, or that there are criminal or civil sanctions on

religious practice. The Department’s refusal to award Trinity grant

money under the Program did not restrict or prohibit the exercise of

religion, but was simply in line with the State’s constitutional ban on

providing “aid” to religion. See Mo. Const. Art. I § 7. Like the district

court found, “Trinity has not presented a single case that supports its

proposition that the State, in establishing a program that offers grants


30

to public and private institutions engaged in early childhood care and

education, is constitutionally required to include religious institutions

in the program.” JA. at 131.

B. Trinity’s claim that its exclusion from the Program

violated the Equal Protection Clause fails as a matter

of law because Trinity has not alleged any facts or

theories that would prove the absence of a “rational

basis” for the Program limitation.

The Court in Locke disposed of the plaintiff’s Equal Protection

claim in a footnote, determining that “[b]ecause we hold, … that the

program is not a violation of the Free Exercise Clause, … we apply

rational-basis scrutiny to his equal protection claims.” Locke, 540 U.S.

at 720 n.3; accord Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974). To

survive rational basis analysis, the law must bear a rational relation to

some legitimate end. Vacco v. Quill, 521 US. 793, 799 (1997). The Court

in Locke determined that Washington’s scholarship program survived

rational-basis review for the same reasons that it did not violate the

Free Exercise Clause. Locke, 540 U.S. at 720 n. 3.


31

Here, the district court determined that the denial of grant money

to Trinity “at least bears ‘a rational relationship between the disparity

of treatment and some legitimate governmental purpose’” because

Trinity’s denial of grant money was based upon the Missouri

Constitution’s heightened separation of church and state. JA. at 133.

(citing Heller v. Doe by Doe, 509 U.S. 312, 320 (1993)). Trinity alleged

no facts that would show that the Department’s decision is not

rationally related to Missouri’s heightened separation of church and

state, nor that would show that Missouri lacks a legitimate interest in

such separation.

C. Trinity has failed to allege any theory that supports

its proposition that it is entitled to relief under the

Establishment Clause.

The Establishment Clause states, “Congress shall make no law

respecting an establishment of religion….” U.S. Const. Amend. I. In its

brief Trinity claims that the Department’s refusal to allow it to

participate in the Program violated the Establishment Clause as the

policy is “hostile toward religion,” “require[s] the state to become

excessively entangled with religion,” and “discriminate[s] amongst


32

religious organizations.” AB. at 24. Trinity fails to allege any facts or

theories that would entitle it to relief under any of these three theories.

1. The Department’s refusal to allow Trinity to

participate in the Program is not hostile toward

religion.

Trinity alleges that the Department “is demonstrating hostility to

religion by singling out religious groups for discrimination when there

is no risk that allowing religious groups to participate would violate any

constitutional prohibition against aiding religion.” AB. at 27. However,

as the district court held, none of the cases cited by Trinity supports its

claim that the Establishment Clause entitles condemns the use of lines

such as Missouri’s distinction between religious and secular

institutions. JA. at 134.

While the Establishment Clause forbids the making of a law

respecting the establishment of any religion, there is no relevant

precedent for using its negative prohibition as a basis for extending the

right of a religiously affiliated group to secure state subsidies. Strout v.

Albanese, 178 F.3d 57, 64 (1st Cir. 1999). In Strout, the First Circuit

upheld a statute that offered grants directly to private educational


33

institutions, provided that they were “non-sectarian,” to subsidize the

education of students residing in communities without public education

facilities. Id. at 59. The decision in Strout centered on the Free Exercise

Clause, discussed above, but the plaintiffs did argue that the statute

was hostile toward religion in violation of the Establishment Clause

because it did not treat religion neutrally. Id. at 60. The court in Strout

held that “[t]here is no relevant precedent for using [the Establishment

Clause’s] negative prohibition as a basis for extending the right of a

religiously affiliated group to secure state subsidies.” Id. at 64. Thus,

the exclusion of sectarian groups from a government program providing

aid to non-sectarian public and private institutions was not hostile to

religion and did not violate the Establishment Clause.

Arguing otherwise, Trinity cites to Rosenberger v. Rector and

Visitors of Univ. of Va., 515 U.S. 819 (1995). In that case, the University

of Virginia’s Student Activities Fund paid outside contractors for the

printing costs of various student groups’ publications. Rosenberger, 515

U.S. at 819. The University refused to pay the printing charges for a

student newspaper called “Wide Awake: A Christian Perspective at the

University of Virginia.” Id. The Supreme Court held that the University


34

violated the Free Speech Clause but that the program did not violate

the Establishment Clause as it was neutral toward religion. Id. at 821.

The program was neutral toward religion because the University had a

policy not to make payments to third parties on behalf of “religious

organizations.” Id. at 840.

Trinity also cites to Bd. of Educ. of Westside Cmty. Sch. v.

Mergens, 496 U.S. 226 (1990). In Westside, the Supreme Court held

that a public high school’s refusal to recognize a Christian club violated

the Equal Access Act, 20 U.S.C. §§ 4071-4074, which requires federally

funded public schools to provide equal access to facilities for student

groups. Westside, 496 U.S. at 235-47. The Court noted that the Equal

Access Act does not violate the Establishment Clause as it is neutral

toward religion, in that it must provide equal access to facilities to all

religious groups. Id, at 228.

The Supreme Court, in each of these cases, only briefly considered

the Establishment Clause in terms of whether it prohibited the schools

from giving funding or facilities to religious groups. See Rosenberger,

515 U.S. at 837-38; Westside, 496 U.S. at 247-48. Thus, the district

court here correctly concluded that “[n]either of these cases can


35

plausibly be read as requiring the State to provide a religious

institution with a publicly funded subsidy by virtue of the neutrality

toward religion generally required under the Establishment Clause. JA.

at 135.

Trinity has cited no case, and the district court could find no case,

that construes the Establishment Clause as giving religious groups the

right to secure state subsidies that are available to non-religious

groups. JA. at 136.

2. The Department’s practice of refusing to allow

Trinity to participate in the Program does not

excessively entangle the Department with

Religion.

In support of its argument that by differentiating between

religious and sectarian institutions Missouri is impermissibly

entangling itself with religion, Trinity relies solely on Colorado

Christian University v. Weaver, 534 F.3d 1245 (10th. Cir. 2008). AB. at

25-26. In Colorado, a state statute provided scholarships to eligible

students to be used at an accredited college in the state, including

private schools, but prohibited using the funds at a school the State


36

deemed “pervasively sectarian.” Colorado, at 1250. In determining

whether a school was “pervasively sectarian” the statute authorized the

State to consider six factors including whether “the faculty and students

are not exclusively of one religious persuasion,” whether attendance at

religions services is required, whether there is “a strong commitment to

principles of academic freedom,” whether there are “required courses in

religion or theology that tend to indoctrinate or proselytize”, whether

the governing board is limited to a certain religion, and whether

funding for the school comes from sources advocating a particular

religion.” Id. at 1251. The Tenth Circuit determined that this statute

violated the Establishment Clause because it had two features not

present in Locke, “the Colorado exclusion expressly discriminates

among religions, allowing aid to ‘sectarian’ but not ‘pervasively

sectarian’ institutions, and it does so on the basis of criteria that entail

intrusive governmental judgments regarding matters of religious belief

and practice.” Id. at 1265.

Missouri, unlike Colorado, does not excessively entangle itself

with religion when determining whether aid would violate Art. I, § 7 of

the Missouri Constitution. Missouri does not have a distinction


37

between “sectarian” and “pervasively sectarian” nor does it have a

statute or policy laying out factors to consider about an institution to

determine whether it is “pervasively sectarian.” Missouri, like every

state with a heightened antiestablishment clause in its constitution,

must make a determination as to whether aid to an organization would

violate its constitution. There must be some weighing of factors to

make this determination, but Missouri does not go nearly as far as

Colorado in making its decision, and thus does not excessively entangle

itself with religion.

3. Trinity did not claim below that the Department

discriminated between religious denominations

in implementing the Program.

Trinity did not allege in its Petition that the Department

discriminated between religious denominations in implementing the

Program. The Eighth Circuit will ordinarily not consider an argument

raised for the first time on appeal. Orr v. Wal-Mart Stores, Inc.,

297 F.3d 720, 725 (8th Cir. 2002). It will consider a newly raised

argument “only if it is purely legal and requires no additional factual

development, or if a manifest injustice would otherwise result.” Id.


38

Determining whether the Department discriminated between religious

denominations would require extensive factual development, and it

should not be considered on appeal.

Even if this Court did consider Trinity’s argument that the

Department discriminated among religions, the claim would fail as a

matter of law because Trinity has alleged no facts or theories that are

plausible.

In Colorado, the State made a distinction between two groups of

church institutions: “sectarian” and “pervasively sectarian” institutions.

Colorado, at 1256. Trinity can formulate no theory under which

Missouri does the same, nor has it alleged Missouri does the same. Just

because Missouri must determine whether its public funds are going to

a religious institution or church does not mean that Missouri is

discriminating among religions or churches. In fact, the facts pled in

this case show the opposite, that Missouri denies funding to all

religions, treating religions neutrally. See JA. at 5.


39

III. THE DISTRICT COURT DID NOT ERR IN REFUSING TO

GRANT TRINITY LEAVE TO FILE AN AMENDED

COMPLAINT AFTER IT HAD ALREADY ISSUED ITS

ORDER IN THE CASE.

A. Standard of Review

The district court refused to grant Trinity leave to amend its

complaint because Trinity waited until after the court dismissed the

action to present any new allegations, and because any amendments by

Trinity would be “futile.” JA, at 226-32. Each of the two reasons the

district court refused to grant Trinity leave to file its amended

complaint has a different standard of review.

A district court’s refusal to allow a party to amend its complaint

for failure to raise the issue before a final decision is issued is reviewed

for an abuse of discretion. See Parnes v. Gateway 2000, Inc., 122 F.3d

539, 550-51 (8th Cir. 1997).

However, de novo review applies to the denial of leave to amend

on the basis of futility that an amended complaint could not withstand

a motion to dismiss for failure to state a claim. Cornelia I. Corwell GST

Trust v. Possis Medical, Inc., 519 F.3d 778, 781-82 (8th Cir. 2008). “We


40

ordinarily review the denial of leave to amend a complaint for abuse of

discretion, but when the district court denies leave on the basis of

futility we review the underlying legal conclusions de novo.” Zutz v.

Nelson, 601 F.3d 842, 850 (8th Cir. 2010).

B. Trinity did not seek leave to amend its complaint

until after the court had already dismissed the action.

Federal Rule of Civil Procedure Rule 15(a) states that a court

should freely give leave to amend a complaint when justice so requires.

However, “different considerations apply to motions filed after

dismissal.” Parnes, 122 F.3d at 550. “After a final judgment has been

entered, “interests of finality dictate that leave to amend should be less

freely available.” U.S. ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d

818, 823 (8th Cir. 2009). Thus, leave to amend may be denied when the

plaintiff fails “to provide any valid reason for failing to amend” prior to

the adverse judgment. Id. at 823-24.

Trinity waited to request leave to amend its complaint until after

the court dismissed the instant action with prejudice. At that point,

Trinity stated that it had learned new information during discovery

before the case was dismissed. JA. at 141. The district court held that,


41

“Trinity’s failure to provide any explanation for not amending its

Complaint prior to the dismissal of this action counsels against

permitting the post-dismissal amendment.” JA. at 232.

C. Refusing Trinity leave to amend its complaint after

the court had already dismissed the action for failure

to state a claim was within the court’s discretion.

“Futility is a valid basis for denying leave to amend.” Parnes, 122

F.3d at 822. “When the court denies leave on the basis of futility, it

means the district court has reached the legal conclusion that the

amended complaint could not withstand a motion to dismiss under Rule

12(b)(6) of the Federal Rules of Civil Procedure. Cornelia, 519 F.3d at

782.

The district court determined that “Trinity has failed to identify

any valid legal theory under which Missouri would need to show the

existence of a compelling interest in order to justify the decision not to

award a grant to Trinity. Accordingly, even with this additional

allegation, Trinity’s Complaint would be subject to dismissal for failing

to state a claim.” JA. at 232. While the district court did not go into

greater detail on this issue, the rationale is understandable. The


42

district court determined that rational basis review applies to the policy

because there is no violation of the Free Exercise Clause. JA. at 133.

Even if Trinity were allowed to add its allegation, the Program would

still survive rational basis review for the reasons discussed above, and

the amendment would have been futile.


43

CONCLUSION

The district court did not err in dismissing Trinity’s complaint

with prejudice or in denying Trinity leave to amend its complaint. The

district court’s Order dismissing the complaint and its Order denying

the motion to amend the complaint should be affirmed.

Respectfully submitted:

CHRIS KOSTER

Attorney General

/s/ Kristin Stokely

JAMES R. LAYTON

Solicitor General

Mo. Bar No. 45631

KRISTIN STOKELY


Mo. Bar No. 65040

P.O. Box 899

Jefferson City, MO 65102

(573) 751-1800

(573) 751-0774 (facsimile)

[email protected]

[email protected]

ATTORNEYS FOR

APPELLEE


44

CERTIFICATE OF COMPLIANCE AND OF SERVICE

The undersigned hereby certifies that on this 17th day of June,

2014, one true and correct copy of the foregoing brief was served

electronically, and an additional paper copy will be mailed, postage

prepaid, to:

Joel L. Oster

Erik W. Stanley

Kevin H. Theriot

Alliance Defending Freedom

15192 Rosewood St.

Leawood, KS 66224

[email protected]

[email protected]

[email protected]

Michael K. Whitehead

The Whitehead Law Firm, LLC

1100 Main Street, Suite 2600

Kansas City, MO 64105

[email protected]

Attorneys for Plaintiffs-Appellants

The undersigned further certifies that the foregoing brief complies

with the limitations contained in Rule 32(a)(5) and 32(a)(6), and that

the brief contains 9,006 words. The undersigned further certifies that

the electronically filed brief and addendum have been scanned for

viruses and are virus-free.

/s/ Kristin Stokely



mailto:[email protected]




Documents

14-1382 IN THE UNITED STATES COURT OF APPEALS … · FOR THE EIGHTH CIRCUIT TRINITY LUTHERAN CHURCH OF COLUMBIA, ... SUMMARY OF THE CASE Appellant Trinity Lutheran Church, Inc